The Alabama House of Representatives voted 72-28 to pass HB 385, which prohibits public libraries from providing materials that are “harmful to minors” or “obscene.” The bill, which passed on Thursday, will now go to the Alabama Senate.

Under the bill, it is a public nuisance for public libraries to provide obscene or harmful materials to minors. The bill defines harmful to minors as appealing “to the prurient interest of minors,” describing or depicting sexual conduct or lacking “serious literary, artistic, political, or scientific value for minors.” Additionally, the bill defines obscene as appealing “to the prurient interest,” depicting or describing sexual content in a “patently offensive” way or lacking “serious literary, artistic, political,
or scientific value.”

Generally, a public nuisance refers to any conduct that interferes with the rights of the public and is usually enforced by a state attorney general. Under HB 385, the state attorney general or district attorney can sue for violations. Additionally, if municipalities pass authorizing legislation, county or municipal attorneys may also enforce the law. 

The bill also removes the public library exemption from the state’s criminal obscenity laws. However, the bill keeps the exemption for college and university libraries. If HB 285 is passed into law, public librarians could be guilty of misdemeanors for violating the state’s criminal obscenity provisions.

The US Constitution’s First Amendment does not protect obscene language. This means that state governments are free to pass laws that limit obscene speech. In the US Supreme Court case Miller v. California, the court used a three-prong test to determine if language is obscene. Under this test, courts look first at whether “the average person, applying contemporary community standards” would find that the work, “taken as a whole,” appeals to “prurient interest.” Next, the courts look at whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law. Lastly, courts look at whether the work, “taken as a whole,” lacks serious literary, artistic, political or scientific value.

Alabama is not alone in passing legislation that restricts public libraries from providing harmful materials to minors. Earlier this month, the Idaho Senate approved House Bill No. 710, which declares that a school or public library shall not promote or make available any conduct that is deemed harmful to minors. Additionally, last month, the American Library Association announced that censorship demands and book ban attempts in public libraries and schools hit a record high in 2023.